IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 322 of 2001()
1. M.K. SAHADEVAN
... Petitioner
Vs
1. STATE
... Respondent
For Petitioner :SRI.BABU S. NAIR
For Respondent :SRI.M.K.CHANDRA MOHANDAS
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :04/12/2008
O R D E R
THOMAS P. JOSEPH, J.
--------------------------------------
Crl.R.P.No.322 of 2001
--------------------------------------
Dated this the 4th day of December, 2008.
ORDER
Heard both sides.
2. Following points arise for consideration:-
I. Whether revision petitioner issued the cheque in
question for the discharge of any legally recoverable debt/liability?
II. Whether sentence is excessive?
3. Perused records.
4. Point No.I.
According to the second respondent, revision petitioner borrowed
Rs.80,000/- from him undertaking to repay the same on demand and on
demanding repayment, issued Ext.P1 cheque dated 18.10.1997 for the
discharge of that debt/liability, cheque was dishonoured for insufficiency of funds
and that inspite of dishonour intimation and demand for payment as per notice
dated 10.11.1999, served on 25.11.1997, revision petitioner did not pay the
amount. Instead, revision petitioner sent reply (Ext.P5) denying the claim of the
second respondent. Second respondent gave evidence as PW1 and proved
Exts.P1 to P7. Revision petitioner gave evidence as DW1. According to the
revision petitioner, as stated in his evidence as DW1, in Ext.P5 and when
questioned under Section 313 of the Code of Criminal Procedure, one
Crl.R.P.No.322/2001
2
M.K.Chandrasekharan gave a loan of Rs.15,000/- to one Suresh and as insisted
by Chandrasekharan, revision petitioner gave two signed blank cheques as
security. Chandrasekharan had told him that on Suresh repaying the amount,
the signed blank cheques will be returned to him but, that was not done.
According to the revision petitioner, the complaint filed by the second
respondent is in collusion with the said Chandrasekharan. Counsel for revision
petitioner contended that due execution of the cheque is not proved and at any
rate, there was no evidence to prove that cheque was issued for discharge of a
legally recoverable debt. Even the presumption under Section 139 of the
Negotiable Instruments Act (for short, `the Act’) is rebutted by the revision
petitioner.
5. It is true that presumption envisaged under Section 139 of the Act
is rebuttable. In the case on hand second respondent has given evidence as
PW1 and testified to the transaction. It is admitted and proved that the second
respondent presented Ext.P1 cheque for encashment and later, produced the
same in the trial court. As regards the version of the revision petitioner is
concerned, I do not forget that he has a consistent case as to how the cheque
happened to be in the custody of the second respondent, right from Ext.P5
reply notice itself. That consistency in the contention is not sufficient to discard
the evidence given by the second respondent which gets corroboration from
Ext.P1 also. M.K.Chandrasekharan referred to by the revision petitioner is none
other than his uncle. He did not take steps to examine the said
Chandrasekharan or Suresh. Result is that apart from what the revision
Crl.R.P.No.322/2001
3
petitioner testified on oath which was challenged in cross-examination, there is
no reliable evidence to show any such transaction between Chandrasekharan
and Suresh and at any rate, that the cheque in question was handed over to the
said Chandrasekharan. It has come in evidence that there was another case
against the revision petitioner as S.T.No.3680 of 1998 in the same court, that he
paid the amount and that case was disposed of. Though, that by itself is not in
any way helpful to the second respondent, that also is a circumstance to be
taken into account while appreciating the evidence of revision petitioner as DW1.
It is admitted that Ext.P1 contained the signature of the revision petitioner. In
such situation the revision petitioner had to prove or probabilise the
circumstances under which, according to him, the cheque happened to be in the
custody of the second respondent. On going through the evidence I find that
revision petitioner was not successful in that attempt. Conviction therefore
cannot be interfered.
6. Point No.II.
Learned magistrate sentenced him to undergo simple imprisonment for
six months. Appeal was dismissed. Considering the nature of offence, amount
involved and object of the legislation, I am persuaded to think that simple
imprisonment till rising of the court and payment of compensation to the first
respondent are sufficient in the ends of justice.
Resultantly, this revision petitioner is allowed in part in the following lines:-
i. Substantive sentence awarded to the revision petitioner is
modified as simple imprisonment till rising of the court.
Crl.R.P.No.322/2001
4
ii. Revision petitioner is directed to deposit in the trial court
Rs.80,000/- (Rupees Eighty thousand only) for payment to the second
respondent as compensation within three months from this day failing which, he
shall undergo simple imprisonment for two months.
iii. It is made clear that it will be sufficient compliance of the
direction in clause (ii) above if the revision petitioner paid the amount of
compensation to the second respondent through his counsel in the trial court
and the second respondent filed a statement through his counsel in the trial court
acknowledging receipt of compensation within the said period of three months.
iv. Revision petitioner shall surrender in the trial court on
12.3.2009 to receive the sentence.
v. Bail bond is cancelled.
Crl.M.P.No.1394 of 2001 will stand dismissed.
THOMAS P.JOSEPH,
JUDGE.
cks
Crl.R.P.No.322/2001
5
Thomas P.Joseph, J.
Crl.R.P.No.322 of 2001
ORDER
4th December, 2008